from the have-they-ever-won? dept

Ah, Perfect 10. The adult content company has spent the last decade or so engaged in one copyright lawsuit after another, accusing pretty much every search engine out there of copyright infringement for hosting thumbnails of images that others uploaded. It has lost repeatedly. And yet, it keeps on suing. At some point, you have to wonder if its legal budget might have been better spent on, I don't know, actually innovating and giving people a reason to buy. It looks like yet another of its legal theories isn't working out so well in court. paperbag was the first of a few of you to send in the news that the district court in California's Southern District has refused to grant an injunction against Rapidshare, suggesting that, as a mere file locker, Rapidshare would not be liable for the infringement done by its users.

Amusingly, the ruling came out just a day before a bunch of US politicians tagged Rapidshare as one of the worst copyright offenders out there, and suggested sanctions should be made against Germany for not stopping Rapidshare. Funny, then, that a US court also doesn't seem to think Rapidshare is breaking copyright law...

Of course, this was just the ruling over the request for a preliminary injunction. TorrentFreak's headline jumps the gun a bit in saying a court found Rapidshare "not guilty" for infringement. It sounds like we haven't quite reached that stage yet. This was just a request for an injunction before the actual case goes to trial. That said, at this point, I can't find a copy of the actual ruling, and the only information to go off of is Rapidshare's own press release, which states "The court rejected the application in its entirety. In its ruling, the court stated that as a file-hosting company, RapidShare cannot be accused of any infringements of copyrights." That sounds like the court said Rapidshare qualified for DMCA safe harbors, but without the full ruling, we don't know for sure -- and it's entirely possible that Rapidshare is exaggerating the ruling.

If anyone has access to the actual ruling, and are willing to share it, it could be interesting (and potentially relevant to other ongoing cases, such as the Viacom v. YouTube case). Once I've seen a copy I'll either update this post or post again, if the details warrant a separate post.

Opinion

not surprising

over the years i have gotten gigs of cool stuff from rapidshare. the right forum post or IRC thread can become a regular treasure trove of content, and it's really tough to track who's downloading from it.

P failed to show likeliness to succeed on the merits, and thus failed to acquire a preliminary injunction. P also failed to present a prima facie case of direct infringement at this stage. Unless P provides a lot more evidence, it looks like D has essentially won the case.

Btw, I think it's funny that 1) RapidShare uses third party search sites to search its own database for infringing files and 2) probably the only thing keeping RapidShare safe is that they do not provide a search engine for their files.

The Actual Court Docket

The case filings are public government records and can be obtained through Pacer. The case number and file docket for the denial of the temporary injunction are as follows:Case 3:09-cv-02596-H -WMC Document 71 Filed 05/18/10. I will not upload the entire case here, as Justia and others will have it posted shortly, but I will say, this is definitely not a slam dunk victory to make illegal file hosting legal. While, they found that as to the evidence on the record that Rapidshare was not committing direct infringement, the court also noted that on the record, there was evidence of indirect (third party) infringement going on. The court, however, was not going to go to a finding of “Contributory” infringement because Perfect 10 had not “yet” met its burden to show that Rapidshare knew or should have known the infringing files were on its servers. That situation is likely to change later in this case if Rapidshare doesn’t do more to prevent illegal file uploads.

On page 7 of the opinion, it clearly stated: “Direct infringement by third parties is occurring. Defendants do not dispute Plaintiff’s ownership of at least some of the copyrighted works at issue in Plaintiff’s motion. (Doc. No. 26 at 19.) Additionally, Plaintiff has demonstrated that its copyrighted images were uploaded onto RapidShare’s servers and are available for download. (Zada Decl. ¶¶ 6-7.) RapidShare users who uploaded Plaintiff’s copyrighted images to the server violated Plaintiff’s distribution rights and any RapidShare users who may have download files containing Plaintiff’s
copyrighted images violated Plaintiff’s reproduction rights. See Napster, 239 F.3d at 1014.”

So, what you have here is a clear indication by the District court is already finding that 3rd party infringement is happening with the file sharing giant. The court is also giving a clear indication that it doesn’t jump to conclusions that are not presented by the evidence.

New media,a broad term used to encompass digital use of traditional media such as film, images, music, spoken and written word, with the computer, will find its place in this fast paced technology, computer-enabled consumer world. My prediction is that companies like the DECE (Digital Entertainment Content Ecosystem) consortium and Disney-Apple Keychest “Digital Rights Storage Locker” technology will soon win the day. But they had better get this figured out soon or the courts will at some point will have to figure it out for them by giving companies like rapidshare the green light to go ahead with their illegal downloading sytems.